On May 17, 2018, Governor Henry McMaster signed the South Carolina Pregnancy Accommodations Act (the “Act”) into law. South Carolina is now one of 23 states that expressly grants pregnant employees the right to reasonable accommodations at work. While federal law already prohibits discrimination based on pregnancy, the Act does include specific notice and accommodation requirements for certain South Carolina employers that go beyond the requirements of federal law.
An initial question is whether an employer is subject to the Act. The Act applies only to employers with 15 or more employees. While this definition may relieve some small employers from the Act’s obligations, employers that are close to the cutoff should be cautious about ignoring the requirements of the Act. Employee counts can fluctuate over time and a change in employee count could cause an employer to become subject to the Act without warning.
The Act amended the current South Carolina Human Affairs Law in three key respects:
- It expanded the definition of discrimination that occurs “because of sex” or “on the basis of sex” to expressly include employment actions taken because of “lactation”;
- It requires employers to provide reasonable accommodations for pregnancy and related medical conditions, including lactation. The Act expressly provides that employers may be required to provide accommodations of the same type and manner as it would for other employees requiring reasonable accommodation for non-pregnancy-related conditions (for example, those who are covered under the Americans with Disabilities Act); and
- It also renders a number of employment decisions unlawful. Notably, the Act makes it unlawful for an employer to require a pregnant employee or applicant to accept an accommodation not of her choosing, if the applicant or employee does not have a known limitation related to pregnancy or the accommodation is unnecessary for her to perform essential job functions; require such an employee to take leave under any leave law or policy if another reasonable accommodation can be provided; or take adverse action against an applicant or employee for requesting or using a reasonable accommodation for a medical need arising from or related to pregnancy, childbirth, or related medical condition.The Act also has some notice requirements: Employers are required to (1) provide employees with written notice of their right to be free from discrimination on the basis of pregnancy, childbirth, or related medical conditions; new employees are to receive this notice upon hiring, and existing employees are to receive it no later than September 14, 2018; and (2) post this notice in a conspicuous place.SHAC has not yet issued guidance on the Act, nor has it created a compliance poster. However, the Act itself does contain some guidance for employers. For example, while employers are required to provide a private place other than a bathroom stall for lactating employees, employers are not required to construct a permanent, dedicated space for lactation. Likewise, while employers must provide more frequent or longer break periods for employees with medical needs arising from pregnancy or childbirth, the employer is not required to compensate an employee for more frequent or longer break periods unless the employer would do so for other employees who require accommodation.Although SHAC has indicated that it will not begin enforcing the notice requirements of the Act until September 14, 2018, South Carolina employers should consider taking the following steps to begin moving into compliance with the Act:
- Revise existing EEO statements/policies to expressly include “on the basis of pregnancy, childbirth, or related medical conditions, including, but not limited to, lactation” within the statements/policies themselves, and update any other anti-discrimination and accommodation policies in company handbooks accordingly;
- As soon as possible, post the revised EEO statement wherever other employment-related notices are posted; and
- Start thinking about the obligation to provide reasonable accommodation to pregnant employees and new mothers, such as identifying private areas that could serve as lactation rooms.The employment team at Wyche stands ready to assist you in analyzing and complying with this new law.